Press Regulation (Communications Committee Report)
(7 years, 11 months ago)
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Lord Best (CB)
My Lords, it is a pleasure to introduce this debate on press regulation, which flows from a report on this theme from your Lordships’ Select Committee on Communications, which I have the honour to chair.
I am very grateful to noble Lords who are here to participate in this debate. I also place on the record my appreciation to the members of the committee, who work in an exemplary cross-party spirit to great effect. On their behalf I thank our clerks Anna Murphy and Nicole Mason, who did invaluable work at the time of this report, and Theo Pembroke, who has succeeded Anna, and our ever-helpful policy analyst, Helena Peacock.
Our report, Press Regulation: Where Are We Now?, came out back in March 2015. However, the committee has revisited the subject over recent weeks, and I will endeavour to share with your Lordships our understanding of the current state of play. Neither our original inquiry nor our latest investigation has sought to review the rights and wrongs of the Leveson report or the subsequent arrangements approved by all the political parties. We have seen our role as trying to clarify where things stand using the unique opportunities open to a Select Committee to quiz the key participants. Twenty months ago, we concluded that the picture was confusing for the public and uncertain for the press. I have to say that the picture today remains one of confusion and uncertainty. Let me recap.
Following the hacking scandals and criminal behaviour by the press uncovered in 2011, the Leveson inquiry was established. It reported in November 2012, and Lord Justice Leveson said:
“There have been too many times when, chasing the story, parts of the press have acted as if its own code, which it wrote, simply did not exist. This has caused real hardship and, on occasion, wreaked havoc with the lives of innocent people whose rights and liberties have been disdained”.
Lord Justice Leveson’s report sought to come up with a system of press regulation that would be acceptable to the public as sufficiently robust to protect the individual citizen, and acceptable to the industry in maintaining the freedom of the press from undue state interference. In the event, after lengthy negotiations between politicians, the press and others—including Hacked Off, the body representing hacking victims—the mechanism of a royal charter, not mentioned by Leveson, was agreed as a compromise between those supporting and those opposing statutory regulation. Then, first the Enterprise and Regulatory Reform Act 2013 and then the Crime and Courts Act 2013 were used by Parliament to give statutory backing to the new arrangements.
Two key ingredients were required to make a new system work. First, there had to be at least one regulator of the required competence, independent of government and of the industry; and secondly, there had to be some means of persuading publishers to subject themselves to such an approved regulator. The first issue was resolved through the creation of a Press Recognition Panel, duly established under the chairmanship of David Wolfe QC. This has had the job of considering whether any potential regulator can satisfy an established set of criteria mostly aimed at assuring the regulator’s independence, but including the requirement of the regulator for its members to join an arbitration scheme to settle disputes more cheaply and swiftly than through the courts.
Since our committee report last year, the Press Recognition Panel has indeed given formal recognition to a regulator, Impress, the Independent Monitor for the Press, chaired by Walter Merricks CBE. However, a large part of the national and local press which was already in membership of the self-regulatory body established by the industry itself—IPSO, the Independent Press Standards Organisation, chaired by Sir Alan Moses —has expressed no desire to switch to the newly recognised regulatory body, and IPSO itself has declared that it has no wish to be considered for official recognition. Indeed, my committee heard from Ashley Highfield, who chairs the News Media Association, that his organisation disputes the validity of the official recognition of Impress and will be taking the matter to judicial review.
The second ingredient in the new arrangements concerns the incentives for publishers to join an approved regulator, once one exists, and the disincentives for not doing so. The architects of the new arrangements in 2013 recognised that, in the absence of legal compulsion, some sticks and carrots were needed. This ingredient in the mix has proved even more problematic than the first. The carrot for joining an approved scheme is the more lenient treatment in respect of damages to be awarded where the publisher loses a case. This measure, covering exemplary damages, is already in force. The stick, which has not yet materialised, is contained in Section 40 of the Crime and Courts Act 2013. Under Section 40 all those publishers not signing up to be members of an approved regulator would face the potentially severe penalty of having all the costs of a complainant’s libel or privacy action automatically awarded against that publisher whether they won or lost the case. The intention was clearly that the significant risks of financial loss would strongly encourage publishers to join an approved, recognised regulator.
Section 40 could be effective only once there was a recognised regulator to which all publishers could belong. With the recognition of Impress, that requirement appears to be satisfied and the DCMS Secretary of State can press the button on implementing Section 40. The Secretary of State, Karen Bradley, told us how she wanted to consider all the relevant issues before taking any action, and a consultation process is under way and due to conclude on 10 January. The announcement of this government consultation emerged during debate on an amendment to the then Investigatory Powers Bill from my noble friend Lady Hollins, in effect to introduce the provisions of Section 40 in respect of hacking—“unlawful interceptions”—which was approved in your Lordships’ House but rejected in the other place.
Having listened to the key players, I think my fellow committee members will agree that matters are very far from being resolved. The members of IPSO will, it seems, passionately resist attempts to make them join a recognised regulator, of which the only one at present is Impress, with no others in the offing. Their objections are financial, with a belief that the compulsory arbitration scheme would be damaging to an industry which is going through tough times because of competition from the new online media, with consequent loss of advertising revenue. Their objections also relate to Impress itself, to which, for example, the News Media Association objects on grounds of lack of independence since its funding emanates mostly from a single sponsor, Max Mosley; because it lacks expertise, with no serving editors on its board or major publishers as members; and because it does not have its own code of practice. Important elements of the press object too on personal, philosophical, political and, to borrow a word from Sir Alan Moses, “theological” grounds. There is deep resentment of coercion by government, alongside fears for press freedom of expression that could deter editorial investigations and campaigns. We suspect that those newspapers such as the Guardian, the Financial Times and the Independent, which have not joined any regulatory body but have devised their own procedures for handling complaints, will also be very reluctant to join Impress for some of the same reasons.
The Communications Committee has also heard, on the other side, from Hacked Off and others that the current arrangements, although almost certainly an improvement on the previous position with the Press Complaints Commission, are far from perfect. IPSO is criticised for its lack of real independence from its paymasters and for its policies and decisions in relation to the prominence given to corrections, the need for apologies for victims, the ownership of the Editors’ Code of Practice by the industry and not the regulator, the absence of arbitration arrangements and more.
The position today seems to be one of stalemate, with the opposing camps showing no willingness to compromise on any point. Yet action by government to resolve matters has its own drawbacks. The Secretary of State could determine that self-regulation has not worked and could bring forward legislation for statutory regulation. This would lead to a protracted and acrimonious conflict with the press, which in my experience politicians are minded to avoid, not least at a time when Brexit discussions will occupy so much political time and capital. Alternatively, the Secretary of State could trigger Section 40 of the Crime and Courts Act 2013, thereby strongly incentivising the newspapers to join the only currently recognised regulator, Impress. From what we have heard, the press at large will do everything it possibly can to avoid this outcome. The temptation for the Government will be to postpone and delay action, perhaps keeping the sword of Damocles, in the form of an unimplemented Section 40, hanging over the press. Yet this outcome cannot be regarded as the optimum from the perspective of either the wider public or the press itself.
We are coming up to the 70th anniversary of the first Royal Commission on the Press, set up in 1947. The second royal commission was appointed in 1962 in response to the perceived failure of the first. The third royal commission reported in 1977, 40 years ago, and so the list goes on, with those concerned with the system of press regulation in the UK struggling to find a system that balances freedom of expression with the citizen’s right to privacy.
Yet broadly satisfactory regulatory regimes are operating within virtually all other industries. Statutory regulation applies to broadcasting; self-regulation works for the advertising industry; most sectors have mature arrangements for resolution of disputes. Surely it is not impossible to envisage arrangements that work satisfactorily for this important industry, the press, as well.
I ask the Government, once again, the question we posed in our earlier report: will the current situation, whereby the majority of the press refuses to submit to the royal charter, be allowed to pertain indefinitely? Your Lordships’ Communications Committee has not attempted to devise a new Leveson report or to produce the silver bullet that would make the royal charter a success. Rather we wanted, in our report of last year, to shed light on the state of play. In our recent probings, I hope we have brought things up to date in a helpful way. I beg to move.
Lord Inglewood (Con)
My Lords, I should declare that for just over 10 years, until earlier this year, I was chairman of the Cumbria Newspapers Group, of which I am still a non-executive director. I am also a member of the advisory board of the Thomson Reuters institute for journalism at Oxford. I congratulate the noble Lord, Lord Best, on his introductory remarks. He laid out a comprehensive conspectus of the issues of the moment.
I had not given a great deal of thought to this topic for a relatively long period. When I looked recently at the Communications Committee report, I was struck by how much time had elapsed since it was written and, in turn, how much more time has elapsed since the Leveson inquiry and the terrible events that preceded it. Against that background, the Government are right to ask whether Section 40 should be implemented and, if so, how.
The world now is a different place from the world then. While the Section 40 provisions are essentially an integral part of the Leveson scheme, if I can call it that—albeit that the detail cannot be ascribed to Sir Brian Leveson—the detail is a kind of ex-post facto bolt-on to his inquiry and there are, as the noble Lord, Lord Best, said, still a number of important outstanding issues. As the noble Lord said—it is also absolutely clear to me—not much of the press will sign up to the various provisions of Section 40 on freedom of press grounds, if I may put it that way. While the case it has made has been somewhat overstated, it is not right to say that there is no truth in it.
Freedom of the press and responsible journalism are very important, and in Europe at present events in Poland and Hungary underscore that. Indeed, in this country I see signs of some people trying to elbow their way on to the national stage whom, I suspect, do not have much time for it.
If the national press as a whole will not sign up to the arbitration arrangements proposed, those arrangements will not work. What matters is that we end up in this country, de facto, having a universal responsible process that is independent, unbiased and deals with complaints in a user-friendly, cost-effective way, which, at the end of the day, may include levying appropriate penalties.
In this life, there is often more than one way of skinning a dead cat. I have concluded that the system of an approved regulator will not work in its present form and another way of achieving a similar—or at least equivalent—outcome is required. I speak as someone who has been involved in the newspaper industry. The industry needs a system of dealing with complaints. All newspapers have them, after all, for their own internal reasons.
What is at issue is the independence and integrity, or lack of it, of the arrangements in place, whether actual or perceived. It is not a matter of objecting to what is required; rather it is an objection to how it has been “imposed”. We need to be more imaginative and find a system of sticks and carrots that can re-establish public confidence, which has been fractured in the past, and, at the same time, do it in a way that will not impugn the press’s freedom for responsible action in its particular proper activities.
Let me make a suggestion that is illustrative of the way we should look towards the problem. I suggest the following, which both covers the freedom of the press point and is likely to provide a framework around which public confidence might be restored. I may be wrong because I have been thinking about the detail for only a day or two and finalised my thoughts last night. If I am wrong, it makes the wider point about the need to come to the problem from a different direction.
Zero rating for VAT on newspapers should be restricted to those whose complaints procedures meet certain basic statutory requirements embedding the general attributes I alluded to earlier. These would be derived from Leveson but would not necessarily be identical to what he argued for. The detail of zero rating in the VAT scheme is essentially, I believe, a UK competence. Therefore, if you comply with the criteria, you get zero rating; if you fail to, you do not get it. It is a commercial decision, not an author or publisher’s decision.
It might be necessary—indeed, I am sure it would be—to refine the criteria with care, but that is a detail for further discussion. The important point is that there is no question of imposing any restrictions on the press and its freedom to say or do what it likes. Rather, there is a genuine financial incentive, introduced in the public interest, to have a way of dealing with complaints in a proper manner, subject—this is important—to judicial and not administrative oversight. Cases of dispute would ultimately be dealt with by the judiciary and the courts and not by the press itself, or administered by “state approved” apparatchiks, even at arm’s length.
In totalitarian regimes the judiciary is suborned by the wicked state, as can be seen clearly, for example, from reading Michael Burleigh’s terrifying history of the Third Reich. Ultimately, any country can be overwhelmed by totalitarianism if it is sufficiently supine. Fortunately, we are still a long way from that.
Finally—this point was made by the noble Lord, Lord Best—it is all very complicated. The arguments that are being run about this topic are far too convoluted and esoteric. Occam’s razor should be wielded and everything should be made much simpler, easier, more understandable and effective.
Lord Lipsey (Lab)
My Lords, it has been a terribly long time since the report was written and only now are we debating it. That, I think, is a bit of a disgrace to the House, but it does enable me to make a first point. When we read the report today, it is amazing how little has happened in the almost two years that it has been awaiting our attention. Apart from the Government’s consultation on Section 40 and Leveson part 2, which has brought a further spell of inactivity, no doubt to be followed by yet a further spell of inactivity while Ministers mull over the results of that consultation, we are really no further forward in implementing Leveson than we were in March 2015 when this report came out. In fact, in a recent debate on the subject some Back-Benchers in the Commons announced the delay as a reason to go on doing nothing. “The situation has changed. Things have moved on. Leveson is four years out of date and the abuses it identified are for the history books”.
But what has changed? Has press behaviour changed? Think of the persecution of poor Prince Harry and his girlfriend. Has press regulation changed? We have IPSO, a small improvement on the feeble PCC which preceded it, but nevertheless its flaws as a regulator are set out superbly in the evidence produced by the Communications Committee as its first document in the report. Impress has been recognised but it has few members, while the Guardian and the Financial Times have sat firmly and unbudgingly on the fence. Above all, the Government have spat in Parliament’s face by refusing to implement Section 40, which means that the press has little or no incentive to join a regulator.
I worry about this not only from the point of view of press regulation, but from the point of view of Parliament. The Leveson solution as adjusted by Parliament to include the royal charter was supported by all the main political parties and parts of it were voted for in successive Acts of Parliament. This is not the first time in history that Parliament has found itself challenged by the press. One remembers Stanley Baldwin putting down the press with his famous phrase,
“power without responsibility—the prerogative of the harlot through the ages”.
But it is a strange time for the press to be waving two fingers at parliamentary sovereignty. The newspapers which are the most rude about Leveson are those which said that we had to vote for Brexit in order to preserve parliamentary sovereignty. Parliament tried to be sovereign about this issue and so far it has been ignored.
Is the future likely to be as unproductive as the past? The Government are consulting. The Culture Secretary, Karen Bradley, takes every opportunity to promise that the consultation is genuine, and so perhaps on 11 January, the day after it concludes, she will leap to the Dispatch Box, promise Parliament that its will shall prevail, implement Section 40 and set part 2 going. Perhaps the same day will see pigs taking off from their sties throughout Britain and Donald Trump converting to the supreme virtue of telling the truth. I do not think that it is going to happen and I do not like the consequences when it does not. The press is on relatively its best behaviour at the moment because it knows that there could still be a Section 40, but I do not think it is likely that that better behaviour will last if it succeeds in seeing off the Government and Parliament and continuing with its flawed self-regulatory system.
It may be that there is no way forward from this. It may be that Leveson is yet another in the long list of false starts set out by the noble Lord, Lord Best—those like Younger, the third royal commission in 1974 and Calcutt in 1983 and 1990. It may be that the supposed power of the Daily Express and the Daily Mail leaves Ministers paralysed into inaction, and it may be that we have to go into another crisis such as that which overwhelmed us all last time.
But before coming to such a pessimistic conclusion, is it worth asking if there is a better way? At the moment both sides are completely unmoving. The press is unyielding, and why not? Kicking the ball into the long grass has worked very well so far. Sir Alan Moses, who showed such promise when he arrived at IPSO as a reformer, has now become the defender of the indefensible, and he is good at it because he is a lawyer. The leading players during the last drama, the Camerons, Milibands and Letwins, have moved on. Meanwhile the spokespeople for the victims, dignified and restrained people as the noble Baroness, Lady Hollins, reminds us, have nevertheless adopted an absoluteness about Leveson’s solutions—Leveson, the full Leveson and nothing less than Leveson. It makes me wonder what has happened to the great British talent for compromise.
In the long run, and this has been a long game already, in all the verdant meadows of England there is not enough long grass to bury this issue in. We have to do better. We owe it to the security of a truly free and responsible press to do better. We owe it to the victims to do better, and ultimately we owe it to our duty to uphold the sovereignty of this Parliament. The report of the noble Lord, Lord Best, need not be history. It can serve as a reminder of the unfinished business which in honour should be finished to the satisfaction of Parliament and our people.
Baroness Hollins (CB)
My Lords, I begin by saying how welcome the report was when it was first published by the Select Committee chaired by my noble friend Lord Best in 2014. It described a distressing lack of progress by the industry with respect to the Leveson reforms. I remind noble Lords that I gave evidence to the Leveson inquiry.
In the time since, we have had one general election, one national referendum, a change of Government and no progress on regulation of the press. Indeed, the press remains the only industry in the country without proper regulation, and it shows. Editors know that they can fool some of the people all of the time and all of the people some of the time—a combination that allows some of our papers to go to print every night. Words really matter. There are too many words written without enough care and with no comeback. In a regulated world, journalists would keep their words spicy and strong, but given they might have to eat them later they would not make them toxic to the host. At the moment some editors seem to encourage journalists to write anything as long as it is sensational, but there is no comeback.
So what kind of regulator is IPSO? According to Hacked Off, which I asked for a briefing, IPSO has so far failed to carry out a single regulatory action in the two years of its existence—no £1 million fines; no fines at all. In fact, there has not been a single standards investigation. I suggest that IPSO is no more a regulator than the PCC, and, from what I have heard, may be even more biased in its complaints handling. On not a single occasion, I am told, have any of the front page code breaches committed by newspapers been ordered by IPSO to be corrected with equal prominence, or even on the front page at all. We still live, two years on, in the pre-Leveson era of buried corrections and a feeling of impunity for newspapers, which are content to breach their own code, knowing there is little or no consequence.
IPSO claims its independence should be accepted on its own assertion. It refuses to apply for the test of recognition for independence and effectiveness. I might have “Lady Hollins” embroidered on an England football kit, but wearing it would not make me an international footballer. The truth is, neither of us would make the cut. In these two years the press has been able to smear, intrude and discriminate with impunity. It has been a lost two years in press regulation.
It has now been more than 10 years since my family suffered appalling intrusion, but now let us think of all those attacked, harassed and victimised by some of the press over just the last two years: survivors of terrorist atrocities like the Bataclan, who have been intruded upon; partners and loved ones of those who lost their lives in the Shoreham air disaster, whose personal information was stolen; the woman who lost her husband and children in Northern Ireland, and found that a national newspaper reporter, posing as a well-wisher at their funeral, published comments made at the funeral as if an exclusive interview. In all these cases over the last two years, and many more, national newspapers have acted against those they claim to defend.
These are just a few of the people let down by newspaper editors and executives, even since the Leveson report was published, and the Government and Parliament accepted his recommendations and passed a law to implement them—executives who, instead of speaking truth to power and defending the voiceless, have sought the complicity of the Government in maintaining their stranglehold on their own internal mechanisms of so-called regulation, allowing them to get away with promulgating rumour and gossip. Indeed, their opposition to part 2 of the Leveson inquiry must be the first time in the history of journalism that large numbers of newspapers are desperately lobbying for information not to come out. Where is the appetite for investigative journalism? I for one dislike descriptions of our society as post truth. Having been brought up in Yorkshire, I call a spade a spade. Now I call lies, misrepresentations and spin what they are—lies.
Paragraphs 135 to 146 of my noble friend’s report deal with Section 40 of the Crime and Courts Act. The report anticipated the commencement of Section 40 and focused on what steps the Government should take if the Section 40 incentive proved ineffective after it was introduced. As noble Lords will know, those provisions were enacted by Parliament but not commenced by the Government. Instead, after meetings with national newspaper owners and executives, the Government intervened to suspend their commencement. That in itself was a violation of the freedom and independence of the press by the Government—something all sides in this debate claim to oppose but which, on this occasion, was welcomed by press editors and owners. It is notable that working journalists in the National Union of Journalists and victims protested.
The situation today is worse than no change. Back-tracking by the Government has in fact moved the situation backwards. The Government have been defeated three times on Section 40 in the last three months in your Lordships’ House and they have been defeated once on their reluctance to start part 2 of Leveson. None of us who was personally affected by these issues expected to be debating this five years after the terms of Leveson 2 were agreed, four years after Leveson 1’s recommendations were published, and more than three years since the cross-party agreement was signed and Section 40 enacted. Few of us will want to continue proposing legislation defeating the Government on Bill after Bill to keep the Leveson recommendations on the agenda, but as long as the Government persist in capitulating to press interests, frustrating the Leveson recommendations and the settled will of the House, it feels as if there is no choice but to take forward these matters in just this way.
The Government have announced a consultation that creates many problems. I am sure other noble Lords will speak to it in more detail. My family and others did not give evidence at Leveson, reliving the trauma and intrusion we suffered—I stress that—so that the Government could require us to do it all over again. This time, instead of an independent judge listening to the evidence in public, a somewhat conflicted Minister will receive the so-called evidence in private. Noble Lords will be unsurprised that I have little confidence in that.
Our evidence remains on record; Leveson’s reasoning and consequent recommendations remain on record; and the circumstances remain unchanged, except for an apparent lack of government resolve to deal with this once and for all. Compromise, as suggested by the noble Lord, Lord Lipsey, is not something that the victims of an all-powerful press industry should be expected to initiate.
I began this speech by saying that this committee report was welcome in 2014. The inaction, indeed the reversals, since then have made it even more relevant and urgent today. The Government said in their response that they would,
“observe with interest as the sector takes forward … important steps to ensure a responsible and accountable press”.
Does the Minister agree with my observations about the continuing failures in the sector to move towards a “responsible and accountable press”?
I hope the Minister will stick to his party’s manifesto and recommit in his response to Section 40, to Leveson part 2, or to considering further action if this impasse persists, and I do not mean just waiting for the consultation. I look forward to his response.
The Lord Bishop of Chelmsford
My Lords, I too thank the noble Lord, Lord Best, for bringing this debate to the House and for his wise and winsome chairing of the Select Committee on Communications. I speak as a member of that committee. I was not part of the committee that produced this report—that illustrates just how long it has taken for it get here—so I also thank my predecessors on the committee for all their work.
However, as the report makes clear and as has been well illustrated by the contributions so far, the situation is far from satisfactory and questions to government remain unanswered. As the noble Lord, Lord Best, has already explained, in the past few weeks the committee has again been burrowing into the detail of the issues and considering the present impasse. I shall not go over those details again; the noble Lord outlined them superbly, but I think that we could conclude that the carrot is not very tasty and the stick seems so severe that it is unlikely ever to be wielded.
Listening to voices in the past few weeks on all sides of the debate only leads me to believe that there must be some compromise and movement on those different sides, otherwise the plurality of rational voices, particularly in local newspapers, risks being drowned out by a cacophony of individual conjecture, prejudice and pretence that is coming at us fast and furious from social media. I do not know whether noble Lords heard Emma Jane Kirby’s fantastic piece on the BBC’s “From Our Own Correspondent” last week showing that many of the pro-Trump fake news stories were fabricated by teenagers in Macedonia and they made quite a lot of money doing it. In a world where many people get their news from Facebook, making sure that we regulate the press properly has never been more important.
Yes, things have moved on from Leveson, but the ubiquitous prolixity of social media is the most obvious way in which they have done so. The fact remains that Leveson offers the sensible solution of self-regulation for the press, through an independent body that is neither in the pocket of the press itself—as IPSO is suspected of being, especially by those with complaints—nor under the thumb of government or some other wealthy group or individual, which is the concern with Impress. Such independent self-regulation is vital for our democracy and never more important than in this present age of so-called post-truth politics. At a time when truth has never been more contested and the digital revolution has brought fake news to new heights, it is not an exaggeration to say that proper regulation can offer newspapers salvation.
Put simply, as people become more internet savvy and, thankfully, increasingly suspicious of those whose voices are just their own, the professionalism of newspapers and journalists, their regard for truth and their readiness and willingness to be regulated could become their unique selling point. “Who can you trust?” is becoming the key question and “You can’t trust anyone” is surely the fearful conclusion that we must avoid at all costs. For newspapers—and perhaps the kind of internet news providers they may end up becoming—this presents an opportunity to be the places we go to first for checked, proof-read, truth-tested and professional news.
Traditionally and still today—this is the long-standing, principled complaint of organisations such as Hacked Off—newspapers seem to think that corrections should be hidden away and that owning up to making a mistake is somehow a sign of weakness. It is not. Christian people and those of a Christian culture know that confession is good for the soul. A good confession involves self-examination, contrition and amendment of life.
Let me give an admittedly trivial but topical illustration of this. A few years ago, I wrote a little book, Do Nothing… Christmas is Coming, which took the form of an imagined conversation between a bah-humbug-I-cannot-bear-Christmas voice in the street and, as it were, the voice of Christian wisdom. In the book, the bah-humbug-I-cannot-bear-Christmas character said he would not send any Christmas cards. The day after the book was released, a newspaper which shall remain nameless published an article: “Bishop says, ‘Don’t send Christmas cards’”. The day after that, I was quizzed about this on Radio 4 and found myself in the absurd position where it was easier to defend something I never said than to try to explain I never said it. That is the absurdity of an unregulated press allowed to do its own thing.
Much more seriously, we should listen very carefully to the concerns expressed this week by the Muslim Council of Britain, which quotes evidence from research undertaken by Cambridge University that mainstream media reporting about Muslims contributes to an atmosphere of rising hostility toward Muslims in Britain. I will not quote them as there is not time, but sadly there are far too many examples supporting this conclusion. Of course, the apologies that usually follow are tucked away in the corner of an inside page.
If the press showed itself more willing to take this on—to embrace self-regulation independently administered by a body it could give its trust to—it would have nothing to fear from this regulation. The press would stand to benefit because we the public are more likely to listen to someone who acknowledges when they are wrong than someone who carries on regardless. It is the difference between a wise teacher and a pub bore, or for that matter an internet bully. Contrition would mean giving equal prominence or something approximating to it to the acknowledgement of a mistake and an apology to those affected.
Make no mistake about it, the term “post-truth” and all that is going on in our culture at the moment is extremely dangerous. We need to turn back the tide of this cynicism. Words have meaning. As the noble Baroness, Lady Hollins, said, there is a word for what we are debating here: it is a “lie”. Where there are lies and corruption, where there is deception and hypocrisy, especially in high places, we look for a free press to speak on our behalf. However, where the press itself tells lies there must be regulation, contrition and correction. In this way, we can all learn that confession and an acknowledgement of wrongdoing is not a sign of weakness but the beginning of strength.
Lord Lexden (Con)
It is a great pleasure to follow the right reverend Prelate the Bishop of Chelmsford, in whose diocese is situated the parish of Lexden, with its fine, flourishing church dedicated to Saint Leonard. However, I regret to say that my Christmas card from the right reverend Prelate has yet to arrive.
The Communications Committee rendered a conspicuous service by producing this clear, sharply written report on press regulation. It summarises the story of perhaps the greatest crisis in the long history of the British press. From the 17th century onwards, our press—diverse, irreverent, bold—has been woven into the history of the evolution of rights and freedoms in our country. The report, which the noble Lord, Lord Best, so helpfully brought up to date in his speech, underlines the sheer gravity of the crisis which struck in July 2011, and reminds us of the quite considerable and intensive work done over the years that followed to find lasting solutions to it.
However, the report is so much more than a valuable work of reference. In its final chapter it poses the central questions which required answers in March last year when the report was published. The questions were addressed to the Press Recognition Panel, the Independent Press Standards Organisation, the Independent Monitor for the Press and the Government. The first three have provided at least some partial answers to the report’s questions through the actions they have taken over the year and three-quarters that have elapsed since the report’s publication.
The Government’s response consists of just seven noncommittal sentences in an annexe to a letter sent by the then Secretary of State for Culture, Media and Sport, John Whittingdale, to the noble Lord, Lord Best, on 29 June last year. The seven sentences—one of which, incidentally, has a small spelling mistake which renders it ungrammatical; as a former editor, although not of newspapers, I notice these things—were in reply to a report of 47 pages, excluding appendices. When I was a member of the Constitution Committee of your Lordships’ House, I often expressed dismay at the brevity and belatedness of the Government’s responses to our reports—but they were positively lavish compared to Mr Whittingdale’s effort. Not the least important of the incremental reforms that could assist your Lordships’ House is a firm and binding convention that Governments will provide timely and substantial responses to reports submitted to them by the committees of this House.
As we all know, the Government will soon face a moment of reckoning on the most critical of all the proposals for the new system of press regulation that has been developing since the Leveson report; they will tell us shortly whether or not they propose to implement statutory arrangements designed to coerce the overwhelming majority of newspapers, which are now members of IPSO, into joining Impress. The report of the Communications Committee, written early last year, states:
“It appears that under the leadership of Sir Alan Moses, IPSO intends to fulfil more of the main recommendations of the Leveson Report”,
having by that stage already incorporated,
“some of the features of a regulator advocated by the Leveson Report”.
It seems to me that Sir Alan has done what he indicated he would do a year and three-quarters ago.
The extent of Sir Alan’s and IPSO’s progress over the period has been carefully measured by the distinguished public servant Sir Joseph Pilling, who in the years since he retired as Permanent Secretary at the Northern Ireland Office has forged a second career as a reviewer of secular and ecclesiastical institutions. He is fearless and determined in his approach. His review of IPSO, published two months ago, was unequivocal. It found that IPSO is independent, effective and largely compliant with the Leveson recommendations. IPSO now constitutes a firmly established regulatory system which will undoubtedly develop even further, underpinned by contract law. Would it be right now to place it in severe difficulties by implementing Section 40 of the Crime and Courts Act 2013?
The extent of the ensuing difficulties that could arise has been widely publicised in relation to the national press. There has been some attempt to suggest that regional and local newspapers, which constitute such a precious ingredient of our tradition of press freedom, would be affected to a much lesser degree. It has been said that concern for the future of our local press is but a smokescreen—a diversion from the main issues—but the threat to our regional and local newspapers from Section 40 is real and potent. Strong representations are being made by local editors and journalists throughout the land; their voices should not only be heard but heeded.
I am particularly worried about what would happen in Northern Ireland, a part of our country with which I have been closely involved for over 40 years. The situation there is already very curious. Northern Ireland is not covered by the royal charter, yet surprisingly it comes within the scope of the Press Recognition Panel established under the charter—a document which, as the committee’s report reminds us, owes nothing whatever to the Leveson inquiry. It emerged from the excited, fertile imagination of a Minister who has now lost office, leaving others to pick up the pieces. Great difficulty and confusion would be created in Ulster if Section 40 were implemented. The Act, like the royal charter, does not apply in the Province, so a Northern Ireland publisher brought before the Northern Ireland courts would not be subject to the penalties that could be inflicted on his counterparts in England and Wales. On what ground of principle could this difference possibly be justified?
However, the devolved Northern Ireland Executive might decide to adopt Section 40 through legislation in the Northern Ireland Assembly, or to introduce quite different arrangements of their own. Where would that leave the much-vaunted freedom from political interference that the royal charter is supposed to guarantee? Even if the Northern Ireland Executive stay their hand, Section 40 might still catch a Northern Ireland publisher if action were brought in the courts of England and Wales. How could it be right to inflict such a totally confused state of affairs on one part of our country?
In its conclusion, the Select Committee’s report spells out precisely what is needed: a system of press regulation which adequately balances the right to privacy with freedom of expression, and which has the confidence of potential claimants and the press itself. There is just one addition that needs to be made: a system that operates uniformly and fairly in all parts of the United Kingdom.
Lord Strasburger (LD)
My Lords, I too thank the noble Lord, Lord Best, for his excellent speech and for the report of his committee. I start by making it absolutely clear that I am an ardent supporter of our free press—our free and disruptive press, which relentlessly holds to account those in power, whoever and wherever they are. I should also declare that I have a small interest in a company that helps whistleblowers to be heard, without risk to their careers and their personal safety. Furthermore, I have spoken in this House on several occasions about the behaviour of many police forces in evading the protection provided by the Police and Criminal Evidence Act for the vital anonymity of journalists’ sources. So what follows in the rest of my contribution comes from a friend of a free press, albeit a critical friend so far as press regulation is concerned.
Let me begin by correcting an error that I made in a speech in this House on 2 November, the last time that I spoke on the subject of press regulation. I quoted an acquaintance who alleged that Paul Dacre, the editor of the Daily Mail, had concocted the Government’s current consultation on the implementation of Leveson. Of course it is impossible to know what Paul Dacre discusses with the Prime Minister or Cabinet Ministers during their private meetings, because although Leveson recommended that Cabinet-level politicians should publish a note of what was discussed in meetings with newspaper editors, and the detail of anything relating to press regulation policy, the Government have failed to implement those recommendations. They are numbered 82 to 84 in the executive summary of the report of the Leveson inquiry. Perhaps the Minister will explain why those recommendations have not been implemented. The former Culture Secretary John Whittingdale divulged, albeit under Select Committee questioning, that he met Paul Dacre two weeks before his decision not to commence Section 40. He said that the issue of Section 40 “may have come up”, but he would not give any further detail on what threats—I am sorry, what representations—Mr Dacre made. In any event, Mr Dacre has assured me that this curious consultation was not his idea. Of course I am happy to accept Mr Dacre’s word and put on the record his denial that he had any involvement in steering government policy, at least on this occasion.
The House will note that I have given my correction equal, if not greater, prominence to my original publication. That is a remedy I am happy to provide, but which Mr Dacre denies his readers, his victims and the public generally on a daily basis. It is a matter of record that when his paper, and other members of the sham regulator IPSO, publishes a correction of a grossly inaccurate article that was splashed on the front page, it is never given anything like the same prominence as the original attack. It is tucked away inside the paper where only those equipped with a magnifying glass will be able to read it.
About a year ago I tackled the chair of IPSO, Sir Alan Moses, on this subject. He replied that editors do not like front page corrections or giving them the same prominence as the offending article, but is that not exactly the point? If editors were forced by an independent self-regulator to do something they do not like every time they carelessly or maliciously malign an innocent victim, would they not take more care to avoid the defamation in the first place?
The same squeamishness about corrections applies to online publications. In the early hours of Monday this week, MailOnline published an apology to an entire family one of its columnists had grotesquely libelled a year ago. The columnist herself grudgingly tweeted a link to the apology at 2 am on Monday when few people would have seen it, but fortunately more than 12,000 Twitter users helped her overcome her shyness by retweeting her tweet to the world.
The Government consultation is clearly designed to undermine the Leveson settlement. It is designed to get one response, and one response only. Not once does the consultation document ask about the impact of failing to implement Section 40, or Leveson 2, on the victims of press abuse or on the public interest—not once. The very people whom the Leveson inquiry was established to get justice for have been totally sidelined in this consultation. It is a sham exercise to give the Government cover for a future decision not to implement Section 40 fully and to cancel Leveson 2.
An excellent report was produced by the Communications Committee under the chairmanship of the noble Lord, Lord Best. Given that it was written two years ago and much water has since gone under the bridge, perhaps its title should be changed from Press Regulation: Where Are We Now? to “Where were we then?”, although in truth not much progress has been made in the intervening period. It was written against the backdrop of an impasse in press regulation, with the press unwilling to grasp its last chance to adopt an independent self-regulator, and with Section 40 then expected to come into force shortly. So one would have hoped that the Government would have taken the report and the situation it describes, which is deeply unsatisfactory and essentially no different from pre-Leveson, as a reason to begin work on how to break the impasse and move Leveson forward. In fact, it has done the opposite, by failing to implement the reasonable measure that Leveson relied on to bring newspapers into the Leveson system. The Government have read the Communications Committee’s report and, instead of moving forward, have moved backward, undoing the will of Parliament and breaking the cross-party agreement in doing so.
Section 40, the Leveson incentive, is endorsed by the victims of press abuse, by the public in polls, by the National Union of Journalists, and by leading free speech organisations such as the Campaign for Press and Broadcasting Freedom and Article 19. It is opposed by press executives and—it seems—the Government, who appear desperate to preserve the networks of power and unaccountability of the status quo.
That status quo is IPSO, a body established as a ploy to reject Leveson, which increasingly reveals itself as a lobbying exercise rather than a genuine regulator. Peter Wright, who has the grand title of editor emeritus at the Daily Mail’s publisher, Associated Newspapers, sits on IPSO’s complaints committee. Extraordinarily, he has taken it upon himself to write to all staff at the Mail calling on them to respond individually to the Government’s consultation and to oppose Section 40.
Meanwhile, IPSO has said it will respond to the Government’s consultation as well, and the chairman, Sir Alan Moses, has written to national newspapers in opposition to the Leveson system. With all the lobbying IPSO has done, it is perhaps no wonder that in two years it has not had time to issue a single fine or to begin a single standards investigation. It is a million miles away from the laughable description the press lobby give IPSO, which is billed as “the toughest regulator in the western world”. It has done no regulation at all—none.
As this report rightly notes, this appalling state of affairs is an injustice to the victims of press abuse who gave evidence to Leveson and to whom promises were made by the Government. It is an injustice to the public, who deserve a free and accountable press. It is also an injustice to this House, as the Government made commitment after commitment to us that Section 40 would happen and Leveson would be implemented. They averted a defeat in both Houses by signing a deal on which—through non-commencement—they are reneging. This is a serious matter for all noble Lords, regardless of where they stand on this issue. I commend the report and call on the Government to urgently commence Section 40 without further delay and to begin Leveson 2.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, I should perhaps start by noting that I was one of the committee of five which appointed IPSO and its chair, Sir Alan Moses, an old friend and colleague, and someone in whom I had and have full confidence. He is someone of robust independence and absolute integrity, and no respecter of persons.
In response to the title of this debate, so brilliantly introduced by the noble Lord, Lord Best, it would be my basic contention that we are now in a reasonably good place—certainly one that would be worsened rather than bettered by bringing Section 40 into force. This debate, fortuitously perhaps through its long delay, clearly feeds neatly into the ongoing consultation process on Section 40 and Leveson 2. I hold no particular brief for the press, least of all the Daily Mail. How could I when it published an outrageous piece so recently on judges—“Enemies of the people”, if you please? But I gently point out to the House that even in the fanciful event of the Mail signing up to Impress, there would be no sanction for headlines of that sort. The brief I hold is not for the press, but it is strongly for freedom of expression, subject only and always to the laws of the land, civil and criminal.
Section 40 was of course passed in the wake of the hacking scandal, the revelations of which shocked the nation.
In the febrile atmosphere that followed Leveson, the political parties reached agreement on a detailed future regime for press regulation, Section 40 being, as the noble Lord, Lord Best, described, designed as carrot and stick to cajole—one could say, to bribe and bully—the press into signing up to an ultimately state-approved regulator, something not easily seen as self-regulation.
Hacked Off, whose members include some, like the noble Baroness, Lady Hollins, for whom I have the most profound respect—
Baroness Hollins
Excuse me. I am not a member of Hacked Off. Hacked Off does not really have members. It has advised and briefed me, and it represents victims, but I am not a member of Hacked Off.
Lord Brown of Eaton-under-Heywood
Forgive me, that is my mistake and I stand corrected, but I hope that the noble Baroness will allow me to say that she is, so to speak, entirely sympathetic to its approach. One understands that; she has an understandable grievance against the press for its appalling treatment of her. Hacked Off was involved in the agreement. I do not know whether the press was that closely involved but, in all events, although there are those who say that an agreement is an agreement and that it must now be fully honoured by activating Section 40, I respectfully disagree. I give just four brief reasons why.
First: can anyone doubt that life for newsprint publishers is becoming ever harder? There are ever fewer readers and, perhaps, more importantly, ever fewer advertisers, as online competition becomes ever more successful. Of course, Leveson regulation does not extend in the same way to online material. Secondly, not only have the courts shown themselves well able to deal with hacking and other criminal behaviour, with regard to the civil law, the right to privacy is becoming increasingly entrenched. Prior to the Human Rights Act, there was no right to privacy under English law, but now, one has only to consider Max Mosley’s case, in which he was awarded £60,000 damages against the press for an unjustifiable invasion of privacy, as the court held—your Lordships will need no reminding of the particular circumstances of the case—to see how far privacy law has come. That said, it is perhaps something of an irony that it is now Max Mosley’s money that is behind Impress, with its guarantee of four years of cheap arbitration.
Thirdly, when Section 40 was enacted, the PCC was still the only regulator in town. It was regarded by many as toothless and ineffectual. I suggest that IPSO is an altogether more effective, powerful body. It is now well established, widely respected and already trialling its own arbitration scheme. Its editorial code is wholly unexceptionable and, for good measure, following Sir Joseph Pilling’s report, to which the noble Lord, Lord Lexden, referred—quite unjustifiably rubbished as a whitewash—Mr Dacre has now retired from the code committee. As Peter Preston, a most respected ex-editor of the Guardian recently wrote in the Observer:
“Ipso, if you look hard at the detail, has made a pretty good stab at improving voluntary regulation. Set the Ipso and Impress editorial codes side by side and no one can see much difference. Apply those codes to current cases and there’s no obvious gap either. The problem for Ipso isn’t performance but perception”.
Fourthly, the FT and the Guardian are of course entirely self-regulating, declining to sign up even to IPSO. The great majority of newspapers, however, have signed up to IPSO, but they have made it crystal clear that under no circumstances will they agree to regulation by a recognised body. They are, as Sir Alan Moses first put it, “theologically opposed”. They see it, and it is widely seen by many abroad, as a form of state control. The Section 40 carrot has plainly failed to seduce the press into the Impress scheme. Do we therefore now want to watch as the stick is applied? Judges already have very considerable discretion with regard to costs orders. Are we really intent on punishing newspapers which, as a matter of principle, are simply not prepared to be regulated by Impress? Do we want war?
This being Christmas week, I hope your Lordships will indulge me if I finish my speech with a brief reminiscence about one of my own old cases. I promise that it is of some slight relevance. Over a quarter of a century ago, I presided in a jury trial at the Royal Courts of Justice over what was then a very high-profile libel case involving the late Robert Maxwell who was suing Private Eye. Mr Maxwell was complaining of a piece in the Eye which he said insinuated that he— Maxwell—had been trying to bribe Neil Kinnock, then leader of the Labour Party, with free holidays and the like, into recommending him for a peerage. The thrust of his complaint was that he was falsely being alleged to be corruptly attempting to get a peerage. Well, the case was opened at great length, as all these cases always are, and the witnesses started going through the witness box, and the case proceeded. On the fourth day, when I came back from lunch in the Inn of Court, Middle Temple, I found a note from the jury which read simply, “Please sir, can you tell us what a peerage is?”.
There it was. We were four days into the case and I solemnly had then to explain the nature of a peerage and what was the underlying complaint. The next day I went back to lunch and could not resist telling my fellow benchers of the remarkable thing that not a single one of the jury of 12 knew what a peerage was, to which one rather dry old judge said, “That doesn’t necessarily follow. One of them might have known and explained it to the others and been flatly disbelieved”. It is fair to say that this was before the great reforms of 1999. It did not do much to improve my faith in juries.
I should note that Mr Maxwell, before his roguery was uncovered, won that case. The jury gave him £55,000 damages, of which £50,000 were exemplary damages; he promised to give the money to a charity but never did. I wonder what your Lordships think of Private Eye. I need hardly say that it has not signed up to regulation of any sort and never will. Do your Lordships want to mulct it in costs as well as in exemplary damages so as to eventually drive it out of business? For my part, I hope not. My plea therefore is: let things be; let well alone.
Lord Lester of Herne Hill (LD)
My Lords, it is a particular pleasure to follow the noble and learned Lord, Lord Brown of Eaton-under-Heywood, with whose speech I entirely agree. His speech and that of the noble Lord, Lord Lexden, make it much easier for me to follow, and I shall try not to repeat what has already been said.
I want to say, first, to the noble Lord, Lord Best, that I congratulate him not only on his report but on the very fair way in which he summarised the position in his opening statement. It was, if I may say so, as good as any judge could have done in the circumstances. I cannot say the same for some of the contributions I have listened to this evening, as I shall explain, because they have not been fair in the way they have been expressed.
I make two preliminary points. First, if we look beyond this country to the rest of the rest of the genuinely democratic world, we can see that no country has fashioned the kind of system that Parliament passed when it amended two Bills to try to incentivise—that wonderful euphemism—the press into supporting indirect state regulation. When I travel around the world, I find newspapers and free speech groups astonished that the British Parliament, which values free speech as a British value, could ever have done what was done. That is water under the bridge, but it is important that the House understands that what we have done is the subject of deep, hostile criticism beyond our shores.
Secondly, as the noble and learned Lord, Lord Brown, has indicated, we already have plenty of laws that regulate the press. We have criminal and civil laws and, thanks to the European convention and the Human Rights Act, we have a right of privacy to be balanced against free speech. Those journalists who have been guilty of criminal behaviour have been tried, convicted and punished by the courts. Those who are guilty of infringements of privacy have had substantial damages awards against them. Max Mosley, who funds Impress, received £60,000 damages, but he was not content with that and he went to Strasbourg, where he tried to argue that before a newspaper threatens anyone’s privacy it must give notice so that an injunction can be awarded against it—and the Strasbourg court threw that out. Not content with that, he seeks through Impress to accomplish something similar.
I am independent and hold no brief for anybody, but I start with this: IPSO, chaired by Sir Alan Moses, has made great progress in the past two years, and it is completely wrong to suggest, as several noble Lords have done and, as the noble Lord, Lord Lipsey, said, that not much has happened or, as the noble Baroness, Lady Hollins, said, that there has been no proper regulation—that it is a lost two years and the Government have been backtracking. None of those statements is fair or accurate.
I shall not go through everything that has been done in the past two years, but I shall mention a few things. As the noble and learned Lord, Lord Brown, and the noble Lord, Lord Lexden, said, there has been an independent review under the chairmanship of Sir Joseph Pilling, who was Permanent Secretary of the Northern Ireland Office, author of the Church of England’s report on human sexuality, a former director-general of the Prison Service and a totally independent reviewer. In his 69 pages, which I doubt many noble Lords will necessarily have read, he looked carefully at IPSO and came to some extremely important conclusions as an independent valuer. That is something that has happened in the last two years—but there has been a great deal more than that.
I asked an official at IPSO to indicate some of the things that have happened. First, a budget has been agreed until 2020—that is something the PCC never had. Secondly, the byzantine rules and regulations inherited by Sir Alan Moses have been cut through by him—something it was said could never happen. Thirdly, there is now a fully functioning and fully staffed complaints system, and a standards function. Two sets of annual statements have been published from all-member publishers, which the PCC never did. A readers’ panel has been set up, with six members of the public, including Tom Rowland, a core participant in the Leveson inquiry. There is a journalists’ panel, which will have its inaugural meeting early in the new year, and, as I say, there has been a very important independent review under Sir Joseph Pilling.
During the past two years, IPSO has handled more than 20,000 complaints and inquiries. It has begun a pilot arbitration scheme, appointed an independent complaints reviewer, Trish Haines, and ordered 13 front- page references. That never happened with the PCC. It has a whistleblowing hotline and, very importantly, has issued private advisory notices. These are not made public but are an important way of disciplining the newspapers.
In his report, Sir Joseph Pilling introduced his recommendations by saying that,
“it is clear that already there are some important achievements. These achievements and the commitment from all of those involved for IPSO to be a success can be built on. These recommendations are not an attempt to save a failing organisation, rather they are intended to help a new regulator, which demonstrates early achievement, promise and commitment, to develop into a trusted, experienced regulator”.
That is an independent evaluation which should carry great weight not only with the Government but with the public and Parliament.
I want to say very little about Section 40 because I wrote about it last Friday in the Times. However, I should like to add to what the noble and learned Lord, Lord Brown, said about Section 40 by saying that in my view, not as a politician but as a lawyer, if Section 40 came before an independent court, I believe that the court would decide—say, by way of judicial review—that it is not compatible with freedom of expression or fairness. It is arbitrary, discriminatory and unfair. It states that even if a newspaper were to win a legal process, it would be liable to pay the costs of the loser as well as its own unless a judge in unspecified circumstances ruled otherwise. That is so obviously unfair that you do not have to be a very clever lawyer or judge to see that it cannot pass muster.
The Government are in a very difficult position. They are not backtracking. The Government have inherited Section 40 and there is pressure from the Hacked Off brigade and others to bring it into force. A Minister—I do not know who it was—must have certified under the Government who introduced Section 40 that in his or her opinion it was compatible with the European convention. In my view, the Minister was wrong: it is not compatible. However, it seems to me the only way that can be established is by the Minister deciding at the end of the review not to bring Section 40 into force, and then for the Hacked Off side to bring a judicial review. At that stage, a court of competent jurisdiction could rule on the matter. If I am right, at that stage, the Government will then be able to comply with the judgment of the court by using subordinate legislation to get rid of the offensive provision. Otherwise, I can quite see that the Government’s difficulty is that if they simply introduced a primary Bill to get rid of Section 40, in the present mood of both Houses it probably would not get through. I think the only way the Government can get it through is on the back of a judicial ruling.
Therefore, I have great sympathy with the Government’s position. This situation is not their fault. I have to say of the former Prime Minister David Cameron that from the very beginning he had grave reservations about what the other parties were doing in fashioning Section 40 and the exemplary damages provision.
Therefore, for all those reasons, I am glad that the consultation is proceeding and that we will know the outcome in January. I hope that the Minister will do nothing at all.
Baroness D'Souza (CB)
My Lords, I add my congratulations to my noble friend Lord Best on his masterly introduction to this debate.
I have the utmost sympathy for those who have suffered such appalling abuse from the press in recent years—abuse that has affected their lives. I do not believe that there should be no limits to press freedom. As we know, the United Nations Convention on Human Rights itself makes it clear that there are limits—among them incitement to hatred. Nor, in today’s climate of press abuse, should there be no sanctions. As we have heard, there are already many sanctions on the press in this country today. However, there is a principle at stake here; there is a difference in kind between an agreement by the majority of the press to abide by certain rules of practice and implementation of Section 40 of the Crime and Courts Act, because it would effectively censor the press due to a justifiable fear of unsustainable costs.
The principle, of course, is that a free press is one of the most fundamental institutions of democracy, along with free and fair elections, an independent judiciary, trade unions and a whole raft of other bodies, including civil society organisations. I have lived and worked in many countries, some of them as undemocratic as they come and some transitional democracies. What is singular about these nations is that press freedom or the lack of it is a measure of the democratic health of a given country. Whenever challenges to existing power arise, inevitably the very first action a threatened Government will take is to restrict the media and, as a consequence, access to information. This is dangerous, as we see today in Turkey.
I know that the victims of press abuse here in the UK believe that “something must be done” and that “enough is enough”; they say that they are,
“not talking about censorship but only of enforcing codes towards a more responsible and balanced press”.
But what does “responsible” mean? Who decides what is responsible or balanced? If it is the Government or an agent of the Government, it will too often be that which discomforts the Government. The imposition of Section 40, while on the surface hedged with safety walls—such as allowing the judge to deny costs in certain cases—is in fact a press regulation and censorship law because it is government-inspired, because it has the power to levy arbitrary costs, and because it is the threat by which the state wishes to enforce membership of a preferred regulator.
We have heard from many contributors to today’s debate that IPSO is weak in its dealings with complaints. That may well be true, but it is new and finding its way. We heard from the noble Lord, Lord Lester, that there has been encouraging progress in very recent times. Let us not glance over the fact that its complaints procedures do not differ significantly from those put forward by the state-approved Impress. Above all, it is a body which is accepted by the press themselves and thus falls into the category of voluntary self-regulation. It needs time and the opportunity to demonstrate the willingness of some of the press to clean up their act.
Finally, we cannot take democracy and its institutions for granted. This may seem obvious, but although we have a long history of freedom in the UK these institutions—including, most importantly, the freedom of the press—are fragile things, so fragile that they need reaffirming almost daily. The tendencies of all Governments the world over is to accrue power, often with the best of intentions: “We know what is good for you”. But unless there are strong and effective mechanisms to enforce accountability, that power will erode our democratic rights. A free and unfettered press is the best possible defence, albeit one that will, from time to time, abuse that freedom; I am afraid that it is the price that we pay.
Lord Prescott (Lab)
My Lords, I am grateful to have four minutes in which to speak towards the end of this debate. I am speaking in the gap simply because I failed to register my name to speak. However, I want to make my views clear based on my experience. It is not a judge’s experience, a clever lawyer’s experience or an editor’s experience; it is the experience of one who has been subjected to abuse by the press, not only in the last few years but in the more than 45 years that I have been a Member of Parliament and in the 10 years that I spent as a trade unionist before that. I have been abused by the press with its lies and deceits, and I have had my phone tapped by the press. I have also suffered collusion between the prosecutor’s office and the police over whether my phone was tapped. I had to go to the courts to prove that I was innocent but I needed money to pay for that. Section 40, mentioned by the noble Lord, Lord Lester, was not helpful for me but, either way, there was no money for me to pursue justice for abuse by the press.
I welcome this debate and the contribution from the noble Lord, Lord Best. He summed it up when he said that there remains confusion—this debate has clearly shown that. I congratulate him on introducing the debate. “Where are we now?” We are still confused, and still angry and divided over the solution. He set out the history of the situation and gave an excellent analysis, but I will refer to the appendices to the report. Appendix 4 deals with what has happened over a period of 70 years. Through all those years, through all the royal commissions and through all the public inquiries into the corruption, bribery and criminal acts committed by the press, why is it that the one thing that has always failed to be acted on is the recommendation for a regulatory or statutory framework? The press has always opposed it and now we come to the second part—Leveson.
Will things be any different with Leveson? I had hoped that they would be. I gave evidence to the Leveson inquiry and looked forward to that debate. I heard what the noble Lord, Lord Lester, said. I am trying to get a meeting with Judge Moses to discuss his annual report. I have not been successful but keep pushing for that. The Leveson recommendations are listed in appendix 5 to the report of the noble Lord, Lord Best. IPSO’s verdict on almost 70% of them is “Not satisfied”—that is, they have not been implemented. I suggest that the noble Lord, Lord Lester, has a look at the report to see whether those recommendations have been implemented. I am trying to seek the information from the judge.
The Leveson inquiry has been attacked left, right and centre. That is a great shame, and it does not look as though its recommendations will survive, but there is something that concerns me most of all. Why have the recommendations on press accountability been opposed? They have been opposed because the same powerful press, which is more interested in profits and power, puts pressure on Governments, and throughout those 70 years Governments have bowed to that pressure. It happened recently with Mr Murdoch—the man in the news. There have been some references to private meetings. He had a private meeting with Mrs Thatcher and shortly afterwards he bought the Times. Prime Minister May has a private meeting in New York with Murdoch and then we get all these other recommendations coming in. We are not going to implement Section 40. By the way, when we talk about the influence of Section 40, perhaps we can think of Milly Dowler, who was the reason why it was decided that something had to be done about the press. Her family had no power whatever against the press barons. To that extent, the powers of the Government and the Prime Minister are important.
Parliament has been ignored. We have passed Section 40 but the royal charter has been totally ignored. It is political influence that makes the difference. People talk about this Parliament and democracy but we should ask what our influence is in this matter. The press are taking total control. I have to finish now as I promised to keep to four minutes and I do not want the Whip to tell me to stop, but you have to look at what is happening.
There is one little thing that has happened which has annoyed me. The last review had a problem with Mr Hunt and his adviser. Now, the new Secretary of State has appointed an adviser from the Sun. For God’s sake, can we not see that what is happening here is indifference to democratic accountability? That is why we must keep pressing to protect Parliament’s democratic rights, not simply those of the press barons, who are interested only in power and influence—and, by God, they have got a lot of it.
Baroness Jones of Whitchurch (Lab)
My Lords, I echo the comments of others about being very grateful to the noble Lord, Lord Best, for introducing his report this evening so eloquently, and indeed to all noble Lords for the hard work that went into producing the report in the first place. I feel that the delay in timetabling this debate was unacceptable. It makes a mockery of our brilliant Select Committee system and the valuable work that they do. Nevertheless, the report still has relevance today. Although it did not go into detail—that was not its role—it reminded us of the widespread phone hacking and police connivance that created a national outcry about the impact that the press were having on their victims and led to demands for reform. In March 2015, the report posed the question: where are we now? Although, as we have heard from the noble Lord, Lord Best, there have been developments, sadly we remain blinkered by confusion and uncertainty.
It is worth revisiting the crucial cross-party agreement that led to the concept of a royal charter, which was there to safeguard the press from any fears of political interference and to establish the validation mechanism for a new, independent, self-regulated press complaints system. We should not lose sight of the importance of that all-party agreement if we are to make further progress in future. I stress that point because some noble Lords this evening have called for a new settlement or compromise. However, we should not lose sight of how difficult it was to reach that agreement around the royal charter all that time ago.
Under the terms of the royal charter, the Press Recognition Panel was established to determine which, if any, regulators met the criteria to be assigned the status of an independent self-regulator for the press. This was a core recommendation from the Leveson report. It was intended to replace the failed Press Complaints Commission and many previous versions of that discredited body. At the time of the Lords report, IPSO had been established as a successor to the PCC but had made it clear that it had no intention of seeking recognition under the royal charter. It continues with that position today and blatantly fails to meet many of the crucial elements that Leveson regarded as essential.
At the time of the Lords report, Impress had just been established with the intention of meeting the royal charter criteria. As we have heard, since that time Impress has applied to the Press Recognition Panel and has been approved as Leveson compliant. The Impress model of regulation includes crucial protections for readers, such as equal prominence for corrections and apologies and low-cost access to arbitration. These are not unimportant points. So I would like to ask the Minister this: how long are the Government intending to tolerate the majority of the press refusing to participate in an approved press regulation scheme, when there is now a scheme available that meets the criteria that were widely endorsed at the time of the Leveson inquiry?
Secondly, I will address the issue of Section 40 of the Crime and Courts Act, which implements a key section of the Leveson report. I have to say that Leveson himself is a very senior judge and was assisted by senior lawyers in the drawing up of that recommendation. At the time that the Lords report was published there was no reason to think that Section 40 would not be implemented in line with the original timetable. It is, after all, an integral part of the agreed Leveson model. It underpins the structure set up by the royal charter and it forms a key part of the rights and responsibilities that go with it. As we have heard, under the terms of Section 40 citizens who bring cases against newspapers that have not joined an approved regulator are protected from paying court costs. Equally, newspapers that have opted into the approved regulator offering low-cost arbitration are protected from paying the other side’s costs if taken to court. Those are the sticks and carrots that we have been talking about today.
It was inexplicable that John Whittingdale, then the Culture Secretary, announced in October 2015 that he was postponing the implementation of Section 40 —although, as we heard today, he had coincidentally met Paul Dacre two weeks earlier. This has now been followed by the announcement by the new Culture Secretary, Karen Bradley, that a consultation would be held on the future of Section 40. What possible reason could there be for a delay, apart from the unseemly lobbying from the powerful press barons who are determined to thwart the delivery of the Leveson agreement?
One reason for the current consultation that has now been announced is that local papers have raised concerns about the impact of Section 40 on their viability. Of course we want the local press to survive and thrive, but we need to bear in mind that the vast majority of local papers are owned by huge media corporations, which have a shared antagonism towards Leveson. What is more, if they signed up with an approved regulator, their concerns would be answered.
There are further concerns, not least that the thrust of the questions in the current consultation invites responses which are critical of the proposals. I ask the Minister whether the Government still stand by the cross-party agreement that led to the establishment of the royal charter. Does he accept that any failure to implement Section 40 would fundamentally undermine that agreement?
Lord Lester of Herne Hill
My Lords, could the noble Baroness, on behalf of the Official Opposition, deal with the point that I have made—and that the noble Lord, Lord Pannick, has made in the past—that we, as independent lawyers, take the view that Section 40 is contrary to the European Human Rights Convention and the Human Rights Act because it is arbitrary, discriminatory, unfair and contrary to press freedom?
Baroness Jones of Whitchurch
My Lords, I thought I had addressed that point. I know that this is an area where there has been some legal disagreement and my point was that Lord Justice Leveson was himself a senior lawyer. This is about implementing his recommendations. Clearly there are different legal views on this matter but it is certainly not a one-sided issue.
As to the outstanding second part of the Leveson inquiry, at the time of the first report in 2012 Lord Leveson reported that he was unable to investigate some aspects of the role of the press and the police as legal cases were ongoing. However, the last case was settled last month so there is now no reason why Leveson part 2, under a new chairman, should not go ahead, as was originally promised by the Prime Minister and others. A range of serious concerns about the role of the police remains. Indeed, over this period a number of police officers have gone to jail for taking bribes, while others plainly failed in their duty to investigate the illegal activities of the press and dismissed the known corruption as the actions of one rogue reporter when it turned out to be an endemic problem.
There are other outstanding concerns about the failure of corporate governance of these huge media corporations during the hacking scandals. These remain relevant given that Sky and 21st Century Fox have agreed the terms of a deal that once again raises questions about whether James and Rupert Murdoch are fit and proper persons to run a media company that owns a regulated TV service. There are also justifiable concerns about the concentration of ownership and whether the merger will threaten our commitment to media plurality.
Does the Minister accept that crucial inquiry work, which Leveson recognised as an essential next step, remains outstanding? Can he be sure that there is no case to answer from the police and others when no inquiry has taken place? Does he also agree that the proposed Murdoch takeover should be postponed until such an inquiry has been completed?
It would be a mistake to believe that the press have somehow cleaned up their act, as some noble Lords who have spoken in the debate would have us believe. As we have heard, they are continuing to make false allegations against individuals, breach victim confidentiality and print false and misleading stories without redress. Over the past year they have fuelled new levels of racism and Islamophobia and have created a wave of hate crimes against innocent civilians. Sadly, the truth is that without the full implementation of Leveson there will be nothing to stop the press from behaving badly in the future, potentially making victims of ordinary people and ruining their lives.
If this was not bad enough, the latest trends on the industrial-scale distribution of fake news and the throwaway assumption that we now live in a post-truth age—although I agree absolutely with the noble Baroness, Lady Hollins, that we should say that it is indeed an age of lies—only goes to underline the importance of having media in the UK that we can trust to tell the truth. If the phone tapping saga teaches us one thing, it is that the failure to tackle the criminal behaviour practised by our press is a mistake. Failure to investigate the wrongdoing of the past is simply storing up trouble for the future, and allowing the press to cock a snook at Parliament is going to risk our democracy being undermined. So I hope that the Minister will be able to reassure us that not only does he understand the continuing clamour for reform that is made so evident in this excellent report but that he accepts that his Government have a duty to complete the work recommended in Leveson part 1 and a further duty to implement Leveson part 2 now that the way is clear. The British people will not forget the way the victims of the press have been treated and they deserve better.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, I thank the noble Lord, Lord Best, for securing this important debate following the publication of the Communications Committee’s report in March last year. I note the lapse of time before this debate could be held but nevertheless it is important that it has taken place. The matter of press self-regulation remains a fiercely debated matter, and it is pertinent timing for us to have an opportunity today to discuss these issues.
A free press is an essential component of a fully functioning democracy and it is vital that the self-regulatory system allows the press to operate independently and carry out its crucial function. My noble friend Lord Lexden observed that we have a diverse, irreverent, bold press which is woven into our freedoms and liberty, and that is so important. It is a point that was echoed by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, and by the noble Lord, Lord Lester of Herne Hill. Moreover, as the noble Baroness, Lady Jones, concluded her remarks, she spoke of the need for a media that will tell the truth. However, that poses the question: whose truth? That becomes a real issue if government regulation goes too far, so it is important to look at this in context.
Since the Leveson report was published four years ago we have seen significant changes to the press self-regulation landscape. Indeed, even since the report of the Communications Committee was published there have been notable changes, as noted by the noble Lord, Lord Best, in his opening observations. In March 2015, as the report sets out, IPSO had only recently been established with around 70 members while Impress was still in development. The Press Recognition Panel was recently set up and it will be almost a year until the self-regulator applies for recognition under the new framework envisaged by Sir Brian Leveson. Today we are in a wholly different place. Impress was granted recognition by the Press Recognition Panel in October, making it the first and only recognised self-regulator under the new system. The Press Recognition Panel spent many months assessing the application from Impress against 29 criteria set out in the royal charter. This included three public calls for evidence and the panel published its report regarding its decision on 21 November.
Meanwhile, IPSO has also developed since its creation in 2014. It is trialling a pilot arbitration scheme that has already been referred to which is likely to conclude next summer, and a consultation on the editors’ code of practice was recently launched by the code committee. It also, as the noble Lord, Lord Lester, observed, commissioned Sir Joseph Pilling to carry out a review of its independence and effectiveness which reported in October, and indeed this was also referred to by the noble Lord, Lord Lipsey. I take issue with the suggestion from the noble Lord, Lord Strasburger, that there was any element of a sham about that process. With respect, that appears to be a misplaced suggestion.
We of course accept that IPSO has publicly stated that it will not seek recognition from the Press Recognition Panel. The background to that lies in some of the observations made by the noble Lord, Lord Lester, about whether this would be perceived to be a government-controlled form of regulation.
I turn to the system of incentives developed to encourage publishers to join a recognised self-regulator. There were, of course, the exemplary damages provisions, which came into force in November 2015, and, as the House knows, Section 40 of the Crime and Courts Act 2013 made provision for cost clauses, which have not been commenced. Unlike the exemplary damages provisions, the costs provisions clauses in the Crime and Courts Act 2013 did not have a specific commencement date.
Section 40 has been discussed extensively in this House at various times. It was designed to incentivise newspapers to join a recognised self-regulator. It contains two presumptions, with which we are familiar. First, if a publisher that is a member of a recognised self-regulator loses a relevant media case in court, it does not have to pay the winning side’s costs. Secondly, if a publisher that is not a member of a recognised self-regulator wins such a case in court, it would have to pay the losing side’s costs as well as its own.
As we have heard, Members of this House argue that commencement of Section 40 will bring substantial benefits for ordinary citizens by providing improved access to justice for victims of press abuse, as well as providing protections for journalists against the threat of high-cost libel claims. However, we have also heard from others, such as my noble friend Lord Lexden, the noble and learned Lord, Lord Brown of Eaton-under-Heywood, the noble Lord, Lord Lester, and the noble Baroness, Lady D’Souza, that commencement of Section 40 could have a chilling effect on the press, particularly local titles, which may be threatened with legal action by those wishing to suppress stories that are in the public interest. They may consider it safer not to publish those stories.
It is interesting that in the course of this debate a number of your Lordships used terms such as “stalemate”, “uncertainty”, the “need for compromise”, and, “Is there a better way?”—a comment made by the noble Lord, Lord Lipsey. Indeed, the noble Baroness, Lady Hollins, posed the question of why there is failure to produce a resolution at this stage. It is because of the continuing debate and the increasing recognition that there must be a middle way and room for compromise, as observed earlier.
It is because of these strong views on both sides of the debate that the Government decided to launch a consultation in November to inform next steps in this area. As the Secretary of State for Culture, Media and Sport set out in her Oral Statement regarding the consultation, and again while giving evidence to the Communications Committee last week, this is an appropriate time to consider this incentive given the recent changes that have taken place in the press self-regulation landscape—changes that have been monitored by someone as independent as Sir Joseph Pilling.
The consultation presents five options regarding Section 40, ranging from full commencement through to full repeal. The consultation also asks for evidence regarding the impacts of these options on both the press industry and claimants. The Government are keen to hear views and evidence regarding the extent full commencement would have on incentivising publishers to join a recognised self-regulator. We do not shy away from that. We seek informed opinions from all sides in this difficult and demanding debate.
The noble Lord, Lord Lester, raised concerns around Section 40, its compatibility with Article 10 of the European Convention on Human Rights and the issue of freedom of expression. The Government remain confident that Section 40 is consistent with human rights legislation. However, we encourage those who have a contrary view to contribute to the consultation and to the debate in order that this matter may be bottomed out. I will make one observation. When the Minister certified the Bill for its introduction, there was of course no Clause 40—he might be forgiven for that at least. However, Clause 40, which was the product of an inter-party agreement, was moved as a government amendment. We continue to be of the view that it is convention-compliant.
Leveson 2 has been raised. Part 2 of the Leveson inquiry will be the subject of the consultation that is going forward. The consultation asked respondents whether the inquiry should continue either with the original or amended terms of reference, or indeed be terminated. It also asked for views and evidence regarding which terms of reference have already been covered by part 1 of the Leveson inquiry and by the criminal investigations—which, as the noble Baroness, Lady Jones, said, have already been concluded. Therefore, that matter remains open for the purposes of the consultation.
Lord Lester of Herne Hill
Could the Minister write to those who have taken part in the debate without disclosing legal advice but nevertheless explaining how the Government can say that Section 40 complies with free speech and the convention?
Lord Keen of Elie
I am certainly prepared to arrange to write a short letter explaining the Government’s view that it does comply and why we consider that it complies without going into a detailed legal analysis, if the noble Lord would regard that as sufficient at this time. As I said earlier, I would welcome his contribution to the consultation process and he might wish to reciprocate by responding not to me directly but in the consultation with his own expanded views as to why he does not consider that Section 40 complies. As the noble Baroness, Lady Jones, observed, Sir Brian Leveson himself, a most distinguished judge, appeared to be of the view at a very general level that such a provision would comply with the convention.
I turn to one or two of the additional observations made by noble Lords. The noble Lord, Lord Best, in a clear statement outlining the background to his committee’s report, himself observed that matters were far from resolved—a view with which the noble Baroness, Lady Hollins, concurred. He used the term “stalemate” with regard to the present position, which is why we have sought to bring about this consultation period. It is the one way to resolve such a stalemate.
My noble friend Lord Inglewood came up with a novel suggestion of tying in the complaints procedure to the operation of VAT. I have to confess that that does not strike me immediately as a use of Occam’s razor. The idea that we should merge our regulatory system of value added tax with press regulation appears at first to be a recipe for further potential confusion and difficulty—but I note his point about the various ways in which a cat can be skinned and of course we will give that further consideration.
I cannot accept the way in which the noble Lord, Lord Lipsey, suggested that the Government had spat in Parliament’s face with regard to Section 40. I simply do not accept that characterisation. He asked whether there was a better way or a compromise. There may be a better way; that is the purpose of the consultation. It is something that we must seek to bottom out. The noble Baroness, Lady Hollins, observed that there had so far been a failure to produce resolution—which is why, again, we consider it important that there should be this consultation period.
The noble Baroness suggested that the Government had intervened to suspend commencement of Section 40. That is not factually correct. There was never a commencement provision in respect of Section 40, unlike in respect of the provisions of the Act with regard to exemplary damages. The right reverend Prelate the Bishop of Chelmsford also referred to compromise. Again, that is why we are proceeding down the route of consultation at this stage.
I have already referred to the observations of my noble friend Lord Lexden, but they are worthy of repetition. He said that we have a “diverse, irreverent, bold” press that is woven into our freedoms and our liberty. That must never be forgotten.
The noble Lord, Lord Strasburger, raised the question of the recommendations in Leveson at paragraphs 83 and 84. I just remind him that paragraph 29 of the consultation document states:
“The Report”—
meaning Leveson—
“made recommendations on the relationship between the press and politicians. The Ministerial Code was amended and, as a result, all Ministers (as well as Special Advisers and Permanent Secretaries) must now disclose details of all meetings with media proprietors, editors and senior executives wherever they take place. This information is published on a quarterly basis”.
I add only that I take issue with the suggestion from the noble Lord, Lord Strasburger, that IPSO is to be regarded as some form of ploy. With the greatest respect, that does not acknowledge the work of Sir Joseph Pilling in reviewing independently the setting up and operation of IPSO. Albeit it has not gone as far as we may have wished, or as many would have wished, and it may not go as far as the regulatory regime would at present require, nevertheless it has moved and at least in the correct direction.
Finally, I simply note that as we go forward I acknowledge the observation of the noble Baroness, Lady D’Souza: you cannot take democracy for granted. You cannot take the freedom of the press for granted, either. When we speak of “truth”, we must again pose the question of whose truth we refer to. This Government are determined that a balance be struck between press freedom and the freedom of the individual. Those treated improperly must of course have redress. Likewise, politicians must not seek to stifle the press or prevent it doing legitimate work such as holding us to account when required. The conclusion of the Communications Committee report makes clear the importance of finding an adequate balance between the right to privacy and freedom of expression. I thank the committee for its ongoing work in this important area.
Lord Strasburger
I need to correct an error that the Minister made in his speech. He described my speech as being critical of the Pilling review and calling it a sham. Hansard will show I made no reference to the Pilling review so it is rather unlikely that I called it a sham.
Lord Keen of Elie
With respect to the noble Lord, he said that IPSO was a ploy and that the Government’s consultation was designed for only one response and was a sham, and he referred to the sham regulator IPSO—as Hansard will show.
Lord Strasburger
My Lords, I did not make any reference to the Pilling review.
Lord Best
My Lords, I am very grateful to the Minister for his excellent summary of all that has gone before, which means that I need not spend too much time repeating any of that. This debate illustrates that there is something to be said for a pause between a report being published and it being debated in your Lordships’ House. With the opportunity to reflect on these matters in the intervening period, the quality of debate has been enormously high. I am very grateful to noble Lords.
Roughly speaking, I discovered that one-third of your Lordships were in favour of the absolutely essential Section 40 being introduced forthwith; roughly one-third thought that Section 40 should not be introduced now or ever; and a third looked for the opportunity of a compromise solution that could genuinely be devised to secure that balance between the freedom of the press and real protection for citizens from libel or invasion of privacy by the press. That is a very rounded debate that I hope the Government will find of considerable value in the consultation exercise into which, fortuitously, all this now plays. With gratitude to all my colleagues for their contributions, I beg to move.